Series 39 -1935 Bombay High Court Case on Satpanth Issue

1935 - Bombay High Court Case on Satpanth Issue

Series 39

DN: email=mail@realpatidar.conn
R^P^^ar Date: 2017.01.24 18:29:1 4 +05'30'

Series 39 ^1935 Bombay High Court Case on Satpanth Issue / 163UHI ^

ildUa M? y&itf slSdl

D Posted by realpatidaron 13-Oct- (P Go to comments Leave a comment (0)

Print this entry

13-Oct-2011

II Jay Laxminarayan || || ||

Cl^ 'leSHHi, bilni (^ct?t£ dldl?LH ^?l 51 ^dUei U? €[b

H^cCtdl ?iSl£ld

*1) U4dl dlA ^duad C-tl^-R HHl<y ot§i? §L^ dni sl^ §?-d^U

dQ>.

?) uldldl ClaiHl Otdicilotl ^otiKtd ?hKIsI?

3) Ot§.l? S^C-t PtaSdHi (Hioi HOl dQ>.

In the year 1935, Mumbai High Court, in the case Devchand Totaram Kirange, related
to Satpanth issue has held following important points;

1) Properly assembled caste panchayat has jurisdiction to outcaste any members
committing case offence.

2) Courts cannot lay down rules as procedures

3) Outcasted member cannot claim any right to property.

dHl^ <^^113181^ Hl^, s\^ dl ?iSl^ S.

Reported text of the judgement is attached for your ready reference

Real Patidar

Download / Print / View ful article, with attachments [Best Option];
http; / /www.box.net/shared /ke3r7c9vcxc0tpmoathx

www.realpatidar.eom/a/series39

mail@realpatidar.com

Page 1 of 8

1935 - Bombay High Court Case on Satpanth Issue

Series 39

1935 Devchand Totaram v. Ghanashyam Bombay 361

www.realpatidar.com

mail@realpatidar.com

See Below

First Appeal No. 289 of 1928, Decided
on 15th January 1935, from decision of
First Class Sub- Judge, Jalgaon, in Spe-
cial Regular Civil Suit No. 497 of 1924.

(a) Jurisdiction — Civil Court — Whether
particular cult is within Vedic religion or
not — Civil Court is not competent to decide
— Civil P. C., S. 9.

The civil Court is not competent to decide
whether a cult is within the Vedic religion or
not. It is not for the Courts to decide that the
Satpanth cult is abhorrent to the feelings of the

www.realpatidar.eom/a/series39

mail@realpatidar.com

Page 2 of 8

1935 - Bombay High Court Case on Satpanth Issue

Series 39

362 Bombay Devchand Totaram v. Ghanashyam (Murphy, J.)

1935

cD.

^eSLcicttoil

leva patidar caste as a whole. That is a ques-
tion for the caste itself. [P 862 G 2]

(b) Limitation Act (1908), Arts. 36 and 24
— Suit for compensation for exclusion of
V\^8malF)^ieiaf(fiOf)keir civil rights An caste is
governed by Art. 36— Caste.

A suit for compensation for exclusion of the
plaintiffs from their civil rights, if occasion
arises for their exercise, in the administration of
the caste funds, and the benedts, of being able
to scrutinize the caste accounts, is mainly in-
tended to vindicate rights of plaintiff as mem-
bers of caste and is governed by Art. 36 and not
by Art. 21. [P 363 G 11

;(c) Caste — Properly asse^hbled panchayat)

fias jurisdiction to outcasts member^ fcom-
^itting caste offences— ^^l^roceeding s are )
in orders civil Court cannot interfer es
A properly assembled caste panchayat has
jurisdiction to outcaste members of its commu-
nity who have committed caste offences and
when the panchayat’s proceedings are in order
and consonant to natural justice, Gourijs of law
caunot by decree interfere with them.

m '

!^{d) Caste — Panchayat^ (Courts cannot laj

(down rules as to procedur^ !^

A Courts cannot lay down rules as to the proce-
Mare to be followed by a caste panchayat in such
matters which are for the panchayat itself.

fp.q64Cqil

Sl2i

S?cUoil

(e) Caste -Panchayat — Notice to members
of caste — Standard cannot be that of civil
Court.

The standard of notice of caste meeting can-
not be that of a civil Court to a party to a suit
and if it is found that actually there was a
widespread notice of a meeting in the customary
way, euabling a substantial proportion of the
caste to attend, the requirements of natural jus-
tice are broadly satisfied. [P 865 C 1]

M. B. Jayakar and W. B. Pradhan —
for Appellants.

A. O. Desai — for Respondents.

Murphy, J. — These two first appeals
have very similar subject-matters and
have been heard together as the two
suits were tried together in the Court
below. They turn on the constitution
of the leva patidar caste and its g07-
ernment. The leva patidars were mi-
grants from Gujerat to the north-east of
the Khandesh District in the Yaval
taluka and some of the caste have gone
beyond and into adjacent villages in the
Nizam’s Dominions and Berar The head-
quarters of the caste are at Padalsa and
there the kutumb-nayaks, or represen-
tatives of the leading families, reside.
These by turn are leaders of the caste,
and summon the caste panchayat and
also issue its decisions. A panchayat is
convened by sending a summons in the
form of a notice, in a book kept for the
purpose, by messengers from village to
village, till all those in which leva pati-

dars are living have been served. The
messenger takes the book to the leading
man of each village and he, and some-
times other leading men asmai^^l’eaif^idir.com
in token of acknowledgment, and, it is
then these persons’ duty to communi-
cate the notice of the meeting to their
fellow villagers.

The point we are concerned with is in
reality a question. The bulk of

the leva pitidar caste are ordinary
Hindus under Brahminical guidance,
but the caste also includes many sects
or special cults. ( The one in Cuestion]
(here is that of t"^ SatpanthJ wh ich es-
pression means the truth faith.” This
cult is said to have be en tounded in the
fifteenth century by a (Mabomedan~sai^ ,
named Imamshah. He performed a|^
miracle, which had the effect of con-
verting a certain number of leva pati-
dars to his teaching, and the cult has
flourished ever since. Its headquarters
are near Ahmedabad where the saint
was buried, and his tomb is in charge of
his descendants, described in the evi-
dence as the “Syeds.” A Hindu “kaka”
or religious head of the sect also live s at
Pirana and serves his co-religionists. I A

second seat of Satpanth is at a place called

Bahadurpur. This was founded by a
grandson of Imamshah and is called the
new Satpanth. Except for there being
no Hindu teacher, it is, as far as we can
gather, a portion of the main Satpanthi
cult. Satpanthis are not born into the
cult, but become so by initiation and
the cult has some scriptures and also
certain rites which are described in the
evidence, and a comprehensive account
of the cult and its history is also to be
found in the Ahmedabad District Gazet-
teer^

(The main question now agitating thel

(leva patidar caste is one which we aref
(not competent to decide^ fit is whetherj^
(this cult is within the Vedic religion, oxi
(not d Jlhe leva patidar caste has deci-J
(ded that the Satpanthis are not Hindus)

(and has outcasted themj and the two
plaintiffs have sought redress through
the Court. This has been denied them
in the Court below, the learned trial
Judge holding that the meeting which
Qutcastad them w as properly co avened

anrl regularly held; and also that the
suits were time barred. As to this last
finding we disagree with the learned
Subordinate Judge. His view was that

ciec-iiceiL §di.

Gldi

self ^dl cl

qHllfl HdU^fi
sal ^di.

s?diotl

dafi.

www.realpatidar.eom/a/series39

mail@realpatidar.com

Page 3 of 8

1935 - Bombay High Court Case on Satpanth Issue

Series 39

1935 Devchand Totaram v. Ghanashyam (Murphy, J.) 'Bombay 363

since the suits were in the nature of
ones for damages for defamation, Art.

'^%S% 3 '^l\oroScastmg the plain-
tififs was come to on 2nd December 1922,
and the suits were filed on 20th Nov
ember 1924, more than a year from the
date of the cause of action. But if the
plaint is read carefully, it is clear that
the suits were not for relief on this
ground, though allusion to such a wrong
have been made in the plaint. The rul-
ing case in this Court on suits for relief
in which caste questions are involved is
26 Bom 174 (l) in which Chandavarkar
J. laid down, broadly, the three classes
into which they can be resolved, and the
ifiaint draftsman must have had this rul-
ing in mind and been aware that a suit
based on defamation was then barred.
jWe think the Article applicable is 36,
las the plaints as framed are for compen-
jsation for exclusion of the plaintiffs
|from their civil rights if occasion arises
for their exercise, in the administration
iOf the caste funds, and the benefit of being
able to scrutinize the caste accounts.,
These are remote benefits, hardly assess-
able to compensation, but Mr. Jayakar
has told us that it is not cash the plain-
tiffs seek but the vindication of their
position as Hindus.

The history of the caste schism goes
back to plaintiffs* father’s time. In
1905-06 the question of Satpanth was,
as far as we are concerned, first raised.
A very large caste meeting was con-
vened at Padalsa, and it is contended
for one side that the meeting condemn-
ed the cult itself as being extra-Vedic;

. and by the other, that all that was
disapproved of was some of its practises
which savoured of Muhammadanism.
The Satpanthis of the day recanted
either their belief or the practices dis-
approved of according to the view one
takes and no one seems to have been
excommunicated then. Unfortunately
the caste resolution of 1906 is not avail-
able to us. The original is either lost
or it has been suppressed by the defen-
dants’ side. A copy from the copy in
the Faizpur caste drafter was tendered
to the learned Subordinate Judge and
rejected as inadmissible. We must
gather the purport of the decision from
some of the witnesses who were pre-

1. Nathu V. Keshawj, (1901) 26 Bom 171=3
Bom L R 718.

sent, and here we think that a dis-
tinction has been drawn in the argu-
ments which could hardly
present to the caste meeticlg.^'
is one of cultivators, and as the record
shows many of them are even now
illiterate. We think they could hardly
have distinguished between the dogma
of the cult and certain of the prac-
tices of its followers. There is in any
case a strong tradition in the casce that
what was condemned in 1906 was the
cult itself, and we think it must have
been so.

After this nothing much in this con-
nection seems to have happened i n the
caste, though plaintiff’s father wasl finedl
(Rs. 2,000 for nob having closed the Sab-J
(panth dhar masala at Faizpur, as he had)
(a^Lreed to doj In 1919 it was discovered
that five or six castemen had again
lapsed into the Satpanth cult. They
were reported and oubcasbed on the basis
of the resolution of 1906, and plaintiff
Totaram himself took an active part
against the backsliders in that year, see
Exs. 61 and 52 signed by him as well as
many others, reporting the names of
these parsons to the kutumb-nayaks.
Part of the arguments for plaintiffs is
based on these letters as showing that
what was then dealt with was the Baha-
durpur Satpanth cult and not the old
one; bub the references to a new Sat-
panth, may only mean a new recrudes-
cence of it. Nevertheless these five and
others gave a casbe dinner in the
dharmasala of the cult at Faizpur, and
this festivity led to 56 more persons of
the caste of that place being outcasted,
besides others from the neighbouring vil-
lages. It has been strenuously urged in
this Court, as in the one below, that the
five or six fre sh Satpanthis were con-
verts t o the (new and nob the^ld Sa^
(pant hi) ; that is, the Bahadurpur one,
but the learned Subordinate Judge has
not^ a c cepted this argument, (j n) (facfl
(th'^r^saWsUto be no r^l^istinctionl
(between the two beliefs and we accejfa)
(his viewj

The large number of outcasbes so
created has led to difficulties in the
caste over betrothals, marriages and the
status of widows. We are told that
betrothals have been denounced, mar-
riages refused, and widows recalled to
their parents’ houses. It was to settle
these difficulties that the caste meeting

<^oil oiqi

^dUaHl

HdUil U4
mail (At d
(Am

?000 oil £5

www.realpatidar.eom/a/series39

mail@realpatidar.com

Page 4 of 8

1935 - Bombay High Court Case on Satpanth Issue

Series 39

364 Bombay Devchand Totaram v. Ghanashyam (Murphy, J.) 1935

of 1922 was convened. The two plain-
tiffs were present at this meeting, and
took, wiyi them to it their legal adviser,
not being a leva patidar
was not allowed to address it. The
plaintiffs themselves however did so.
Their main contention was that the
question whether their beliefs were
extra-Vedic or not, had never been pro-
perly examined by any person compe-
tent to decide it, and they urged that it
should be referred for the opinion of the
Shankaracharya. But these arguments
were brushed aside and they were told
that if they wanted that authority’s
opinion, they could themselves procure
it. The meeting passed six resolutions.

The record of its proceedings opens
with a recital of its having been sum-
moned. There is next a preamble stat-
ing that in connexion with Satpanth a
meet ing had been held in 1906, at which

g i been resolved that the Satpanth)
oij^ ^utsideV ^he pale of the)

5 relilion, and][^nab all persons of)
casteJlshould live it upj It next
states that Satpanthis then confessed and
abjured the cult : but that thereafter
some persons had again gone back to it
and had been outcasted, as had some more
who had dined with the outcastes, and
that for this reason marriage ceremonies
of relatives of the outcastes were
impeded, and in order to solve these
difficulties the resolutions which follow

were arrived at.

r The first resolution recites that of
those outcasted, some on purging their
heresy have been readmitted, but that
those who have not are outcasted as
will be all who help them. The second
resolution states that those who have
formed marriage alliances (really ar-
ranged betrothals) with Satpanfchi fami-
lies are authorized to break them off.
The third resolution states that widows
in Satpanthi families may be recalled to
their parents’ houses. The fourth pro-
vides a time limit within which absent
Satpanthis may recant and surrender to
their village panchas, who shall trans-
mit a list of such persons to the head
panchas. The fifth requires the village
panchas to explain the resolutions to
absentees from the meeting and more
particularly to the followers of the cult
or those connected with them, or sus-
pected of it, and to take and record their
signatures. And the sixth directs the

Actual s
sss 6?icil
sk-t

^cll. rlHL oilU

a)

aelGl Giod^
dlSdl^

k

ySciLHl

§dL

kutumb-nayaks at Padalsa to prepare a
list of outcastes and of those who re-
suse to comply with the
tion, or to give effect at o nce

Tealpaiiciarj jom

giro Cbu

fers of excommunication. I Next comes
a note evidently later than 3rd January,
the limit for abjuring the cult, saying
the lists have been received and annex-
ing a list of those outcasted. The two
plaintiffs were accordingly outcasted.
This is a precis of the history of ihe
pl aintiffs’ grievances. ^

.There is no doubt that a properly as-

(^mbled caste Janchayatflhas jurisdic-
tion to outeasteV members of its com-
munity who ha^ committed caste of-} oIIgil^g( 1 RdH

mnces, and that| yhen the panchayat’s
m^oceedings are in order and consonant
lO natural justice, Courts of law c annot
,, " ^decree interfereriwithr themj On
their face these proceedings appear to
be quite regular. They have been at-
tacked on the grounds, that plaintiffs
were not given an opportunity to show
that their beliels in fact were not repug-
nant to the Hindu religion, and that
the meeting itself was not properly
called, as notice of it was not sent to all
the villages where leva patidars reside.

As to the first question it would, no
doubt, have been within the competence
of the panch to seek the opinion of the
Shankaracharya or any other authority

Ojotl S?c{l
Hd, rlcil

s^dLoil ^ouEld

RdH VHLl^

^(Hl ^ S.

alu

S^cildl
^dl dsfl.

on the question, or to take evidence on
it and so to decide the poin^ biit lOourtsI)
(cannot lay down rules as toUthie proceX
taure to be followed by a ca ste p ancbayat'i
an such matt ers, which are ) f^ Tthe) ^an^
(chaTat itself.) The Satpanth cnlfc ia in
fact wellknowD. There is a long account

of it in the Gazetteer for the Ahmeda.

had District, and we do not suppose
that its tenets were not known to the
caste. Moreover, in 1906, there had
clearly been a long debate about it, and
the meeting in 1922 proceeded on the
footing that that panchayat had already
made a decree, and that what it was
doing was the enforcement of this de-
cree against backsliders and newly won
adherents of the cult, who were offered
an opportunity to recant, the alternative
being to leave the caste. We think
there was jurisdiction to act as the pan-
chayat did.

As to the second objection, the system
of convening meetings has been des-
cribed. Messengers were sent with a
notice of it to a certain number of vil-

www.realpatidar.eom/a/series39

mail@realpatidar.com

Page 5 of 8

1935 - Bombay High Court Case on Satpanth Issue

Series 39

1935 Devchand Totaram v. Ghanashyam (Murphy, J.) Bombay 365

WWW!

PlKoi^d

<H§1?

C-ilsl

rtl

sic^<n4
^ 'i?'!

lages, the leading man in each of which
had to endorse the messenger's book
with a kind of receipt of the notice. In

evidence

cnics were sent to villages where
weekly bazaars are held, and post-cards
to distant ones, and the villages in
Berar got notice through the kutumb-
nayak of Datala which is apparently
their headquarters. These were the
customary modes. According to the
plaintiff there are ninety-seven villages
in Khandesh and sixty-seven in Berar
and Nemad where leva patidars live, but
some are probably only hamlets and the
number must vary from time to time.
There is in fact no real census, and no
good ground on which to find on this
point. The learned Subordinate Judge
thought that the Satpanthi groups re-
fused to acknowledge the notice and to
sign the book, but found that eighty-
four villages got notice, through the
thakoors or messengers and that the re-
presentatives of eighty-seven villages
were, in fact, present at the meeting of
1922 ^

(flere again it is clear that the stan^

Jd^rd of nobica of a caste meeting cannot)
{Jbe that of a civil Court to a party to a)
^suit; and that if it is found that actually)
jthere wasfw "Widespread notice^f a)
meeting in the customary way enabling)
^substantialjproportion of the caste to)

''^natural]

this is

the learned Subordinate Judge's finding,
with which we are not prepared to inter-
fere. But the learned Subordinate Judge
has also found that though allegations
as to the irregularity of the meeting are
now made, this is an afterthought, and
that at the time no protest on this point
was made as appears from Ex. 140, which
was a pamphlet published afterwards as
an appeal to the whole of the Hindu
community, with a full statement of the
Satpanth cult's position, the point taken
in it being, not that the meeting had
been irregularly convened, but that it
had refused to listen to arguments, or
to consult the Shankaracharya. In fact,
the finding is that the panchayat's juris-
diction had been submitted to by the
plaintiff. We agree. But even had this
not been the finding as to the jurisdic-
tion of the panchayat and the regularity
of its proceedings, we think that on the
frame of the suit it was not possible to

give the plaintiffs any relief. The de-
fendants are said to have been impleaded
as being leading men of the caste, and
some of them have said in
statements that they voted against the
proposal that the two plaintiffs and
others be outcasted because they were
Sabpanthis, and that they were over-
ruled by the majority.

Had the suit been framed for damages
for slander, it might have been possible
in certain circumstances to give the
plaintiffs decrees on that basis, against
persons who took part in the defamatory
proceedings; but such suits were time-
barred when these were brought. Had
the suits been for declarations that the
proceedings of December 1922 were
void, and had they been brought against
the defendants as representatives of the
caste, some other remedy might have
been open to the plaintiffs. But, on the
facts, even had the plaintiffs been able
to show that the panchayat meeting of
1922 had no jurisdiction and had been
irregularly convened and had decided in
contravention of the rules of natural
justice, we feel that no relief could have
been given to the plaintiffs. In Appeal
No. 289 plaintiff Devchand Totaram's
grievance is that defendants have denied
his civil rights of managing and super-
vising the caste property and caste funds,
for which wrongs he claimed Rs. 3,000
damages; and Es. 2,250 for the defen-
dants having broken the marriage en-
gagements of his sons and daughter (the
actual persons breaking.off the betrothals
being defendants 1, 2 and 3).

But in the course of the trial of the
suits, as appellants' learned counsel,
Mr. Jayakar, admitted, the questions of
caste rights and damages were lost sight
of — there is nothing to show that every
leva patidar has as by birth-right a part
in the management of caste property, or
caste funds, if there be any — for these
must clearly be managed by some sort
of a committee to which a particular
leva patidar may never be nominated or
elected, and at most the right would be
some sort of voice in such nomination or*
election; but there is no evidence as to
how caste funds are managed, or to
show that the plaintiffs were ever ex-
cluded from management, or denied the
right of supervising the funds. The
grievance as to the breaking off of betro-
thals is rather like a suit for damages for

room

www.realpatidar.eom/a/series39

mail@realpatidar.com

Page 6 of 8

1935 - Bombay High Court Case on Satpanth Issue

Series 39

366 Bombay Devchand Totaram v. Ghanashyam (Barlee, J.) '

1935

breach of promise of marriage; but; this
is another of the pleadings which seems
to have been forgotten at the trial and
upon it and no finding.

Plaintiff Totaram Badhu’s suit is
similar, though the damages are put at
Rs. 30,000. In the plaint the cause of
action is that the defendants have un-
justly and without any justifiable reason
outcasted the plaintiff', and so deprived
him of all his civil rights appertaining
to the community, and his right to look
at or scrutinize the caste fund accounts.
But there is nothing to show what the
funds are, and what the accounts may
be; or evidence to prove that he has
ever been refused any such rights. It
may of course be said that the act of
outcasting the two plaintiffs itself in-
volves a loss of these privileges, but we
think that something more is needed.
There must cleanly be an occasion in
each case in which the plaintiff sought
to exercise these rights and were refused,
and the remedy would clearly be a decla-
ration and injunction against the caste
as a whole, sued in a representative suit,
but this is not what has been sought.
But even such a declaration and injunc-
tion seem to be ineffective remedies in
the case, of such shadowy and vague
rights as the plaintiffs have sought to
enforce.

The learned Subordinate Judge seems
to have been unnecessarily harsh to
plaintiff Totaram — he has applied to
him the, as far as we can see, undeserved
epithets of bare-faced liar, turn-coat,
time server and thorough hypocrite,
while though he may have been incon-
sistent, he and the second plaintiff are
Teally fighting on a point of faith. It is
'not for the Courts to decide, as the
|learned Subordinate Judge hasneverthe-
jless done, that the Satpanth cult is
labhorrent to the feelings of the leva
Ipatidar caste as a whole. That isaques-
ition for the caste itself, and we think
that it has decided it, a nd that its pro-
cedure in coming to a ( decision was not^
(a so irregular and c ontFaCT to the dictates

natural iusticej and that, however the
plaints may be framed, what they raised
was really a caste question outside our
purview. We think the plaintiffs must
fail. We confirm the lower Court’s
decree and dismisss these two appeals
with costs.

Barlee, J. — I am unable to agree with

the finding of the Subordinate Judge on
issue 1, i. e. whether the Court had
jurisdiction. The learned Subordinate
Judge has relied on 26
that case Chandavarkar, J., held that a
suit raising a caste question in which
the plaintiff complained of the loss of
rights of property or office or of defama-
tion was cognizable by a civil Court;
and he went on to say:

If a caste has funds or property which is con-
trolled by all its members and one of its mem-
bers is excommunicated, he can sue for his right
to control it or have a voice in its management
and a civil Court can give him relief because he
has a civil right.

This, it seems to me, means no more
than that a right of management of pro-
perty is a right to property which can
give a civil Court jurisdiction, and so
far the statement of the law is unexcep-
tional. But it is difficult to conc eive a
case to which it wo uld a pply, ( for —
Autonomou s caste canX B&Kq ^hat rules,

5t pleasesj and may at any time hand
over the management to its headman
or a panch; and. as remarked by
Batchelor, J. in 11 Bom. L. R. 1014 (2),

a civil Court will not make a decree
which can at any time be rendered nuga-
tory, or, I may add, base its finding as
to jurisdiction on a mere privilege which
can be taken away. In my opinion,
therefore 26 Bom. 174 (1) cannot help
the plaintiff* appellant as he has not
based his claim on defamation and (do^s

Pl21H oi<ncii
cl oiaiicfl

5.

r

ot claim any right to pro per ty^

jrom the right of manaKement,^ Further
he has admitted that the immo\^ble pro-
perty of the caste is managed by a com-
mittee and that no one has a right of ap-
pointment to the Committee (para. 40).
The kutumb-nayak, he says, keeps the
accounts of the caste. He places them
before caste meetings, when every mem-
ber has a right of inspection. This is as
far as he can go. He does not claim
that every member has a right of
management. Clearly his case is not
that visualized by Chandavarkar, J.,
where every member has a right of
management. I think then that the lear-
ned Subordinate Judge was wrong and
that the plaintiff has not shown grounds
on which a civil Court can interfere.
Again, I cannot find that the resolution
of the caste gave the plaintiff any cause
of action except defamation, which is

2. Jethabhai v. Ohapsey, (1909) 84 Bom 467=4
I C 108=11 Bom L R 1014.

ceiS?l ^ PlCHSd
Hi (HLOL alQ».

www.realpatidar.eom/a/series39

mail@realpatidar.com

Page 7 of 8

1935 - Bombay High Court Case on Satpanth Issue

Series 39

1935

Abdul Eazae v. Adam Haji Bombay 367

WWW

idol?

S^l I
yyc-iHi<n
Hi-naiaioii

■n iS[

ril rl

Mt5l MSSl?
(challenge)

not pleaded as a basis for damages. I
accept Mr. Jayakar’s argument that if he
proved an infringement of his right
.^4ipra8^r.^need not prove pecuniary
loss (damnum). But there is no evidence
that the infringement pleaded, i. e.
exclusion from the management of the
caste property, had occurred at the date
of the suit. He was not at that date a
panch and the most that can be said is
that as he was not bidden to the caste
meetings he had no opportunity of exa-
mining the accounts. This hardly seems
enough. He could have asked to see
them. In any case, the date of the cause
of action entered in the plaint is 24th
December 1922, the date of the resolu-
tion, and he has not complained of any
tort apart from it. In other words, his
suit is really based on defamation and
exclusion from the caste and nob on the
deprivation of any civil rights.

I agree with my learned brother that
an attempt was made to summon the
whole caste with the exception of the
Satpanthia to the meeting of A. D. 1922,
but I am not satisded that the Satpanthis
were summoned. To my mind this does
not affect the defence, for the purpose
of the meeting was not to consider the
question of Satpanth but bo carry out
the previous resolution of Samvat 1962
(A. D. 1905-06), and it cannot be
necessary to convene the whole caste for
the purpose of executing its decrees.
The meeting of 1962 was regular, at any
rate no technical objection to its resolu-
tion has been put forward. The com-
plaint is only that the theological ques-
tion was not considered on its merits by
persons competent to decide it. This is
probably true and a genuine grievance;
bub a civil Court cannot dictate to a
caste the grounds on which it must act.

(If the leva patidars chose to say that no)

(one who worships a^iluhammadaBjJPir)
Jmigbt continue to be a me mber, no onew
can challenge their decision j It appears

to me then that the plaintiff’s grievance
dates back 30 years and it is much too
late now for a civil Court to help him.
It is also not competent for the civil
Court to consider and decide the only
point on which he asks a decision whe-
ther the Satpanth is within or without
the Vedic religion.

Lastly, it has been argued that there
is no admissible evidence of the purport
of the resolution of 1962, since the book

in which it was written has not been
produced. There are three answers.
Firstly, it is proved that the book has
been lost and in consequert^§fl@f^||§9f)@a>com
dary evidence is admissible. Secondly,
the resolution is not a contract or matter
which had to be reduced to writing. So
oral evidence is not excluded by S. 92,
Evidence Act, 1872. The oral evidence
too is primary. The witnesses were
mostly illiterate, and were giving direct
evidence of what they heard at the meet-
ing and not secondary evidence of a
document which they had read. Lastly
the purport of this resolution was pleaded
by the defendants and the plaintiffs in
their counter written statement admit-
ted it. It was not a fact which had to
be proved. The appeals should be dis-
missed with costs.

K.S. Appeals dismissed.

f). c*» • *- • » i c-

. J

cjiot» C .

mriOf '-■rTjCC’or (

* > %

www.realpatidar.eom/a/series39

mail@realpatidar.com

Page 8 of 8